Stephen A. Lenn and Ksenia Lenn - Page 14

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          Otherwise, according to petitioner, the deductibility of legal              
          expenses under section 213 would incorrectly depend on the                  
          success of the litigation.  Petitioner has not satisfied the                
          underlying requirement of a medical expense deduction as set                
          forth in Gerstacker v. Commissioner, 414 F.2d 448 (6th Cir.                 
          1969), that the expense be an essential part of medical                     
          treatment.  Accordingly, it is not necessary for us to determine            
          whether, in the context of a medical expense deduction, the legal           
          proceeding must be successful for the taxpayer to deduct the                
          legal expenses.  Because Daniel attended Eagle Hill even though             
          the school district did not contribute to the costs, it is far              
          from clear that the legal expenses in this case were essential to           
          obtain medical treatment.  Obviously, Daniel could have attended            
          Eagle Hill without petitioner's instituting legal action against            
          the school district.                                                        
               This case is distinguishable from Gerstacker v.                        
          Commissioner, supra, because petitioner did not institute the               
          legal action to legitimate or authorize medical treatment for his           
          son.  The barrier to medical care in Gerstacker was legal in                
          nature.  However, in this case, there was no legal impediment to            
          Daniel's enrollment at Eagle Hill.  The barrier to, or burden on,           
          the receipt of medical care was the financial cost of Daniel's              
          treatment at Eagle Hill.  Petitioner argues that under the                  
          reasoning of Gerstacker v. Commissioner, supra, the standard for            
          the deductibility of legal expenses should be whether a                     
          reasonable person in petitioner's financial situation would have            

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